Facts: Husband was an Air Force officer deployed in South Korea, where he met Wife. They divorced after 25 years of marriage.

During much of the marriage, Wife continued to live in South Korea and not with Husband.

Husband retired from the Air Force, moved to Tennessee, and filed for divorce.

Husband was represented by counsel, while Wife was not.

They entered into a marital dissolution agreement (MDA) dividing their marital property. The MDA did not provide for Wife to receive any portion of Husband’s military retirement benefits. The trial court approved their agreed divorce.

About 10 months later, Wife—now represented by counsel—moved to have final judgment of divorce and MDA set aside under Rule 60.02. Wife asserted several arguments, including:

• she thought Husband’s attorney represented both of them;
• she believed she was not legally entitled to any part of Husband’s military retirement benefits; and
• Husband did not disclose his assets and liabilities.

An evidentiary hearing followed where both parties testified. Among the evidence presented was

• a letter to Wife from Husband’s attorney advising that he represents Husband in the divorce (Wife testified “maybe I didn’t read it”),
• Wife’s testimony that she feared Husband might kill her if she didn’t sign the MDA because she knew “he had so many guns in the gun safe, and he has [a] handgun,” and
• Wife’s admission that she believed at the time that she was entitled to 50% of Husband’s military retirement benefits.

The trial court found no evidence of fraud or mistake of fact to justify Rule 60 relief. Wife’s motion was denied.

Wife appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Rule 60.02 allows a court to set aside or change a previous court order for various reasons, including mistake of fact, inadvertence, surprise, excusable neglect, or fraud.

Relief under Rule 60.02 is considered an exceptional remedy, the basis for which must be substantiated by clear and convincing evidence such that the truth of the facts asserted is highly probable. The bar for attaining relief is very high and the burden borne by the movant is heavy.

A mistake of law is not a basis for Rule 60.02 relief.

The Court found Wife’s proof failed to satisfy the heavy burden:

Husband concedes, and his testimony reflects, that he told Wife he did not feel she was entitled to any amount of his pension because she had not been living with him. This Court has stated, however, that an interest in a retirement benefit, vested or unvested, that accrues during the marriage, is marital property subject to division. Military pension rights are not excluded from such division. Husband’s “feelings” aside, his statement to Wife was legally inaccurate. To the extent Wife believed Husband’s misstatement of the law, she was under a false apprehension. That said, Tennessee law is abundantly clear that a mistake of law as opposed to fact will not justify relief under Rule 60.02. Furthermore, judging from Wife’s testimony, it is not at all clear that there actually was any mistake. At trial, Wife testified: “I knew I get 50%.” In fact, Wife testified she knew “just automatically” that she had an interest in Husband’s retirement. Husband rebuffed her, but Wife knew about the pension, and even knew it was marital property subject to division. . . . Responsibility for Wife’s failure to pursue or explore further her claim to a share of Husband’s pension rests with Wife. . . .

Several of Wife’s contentions depend on crediting her testimony, much of which was contradicted by Husband’s testimony. . . . Thus, the evidence in the record on appeal with regard to these questions of disclosure and threats rests upon a he said/she said dichotomy which, in turn, hinges upon an assessment of witness credibility. The trial court’s order reflects an implicit credibility finding in favor of Husband. We extend a high degree of deference to trial courts’ credibility determinations, and we will not overturn such determinations absent clear and convincing evidence to the contrary. No such clear and convincing evidence is forthcoming. . . . We find that she failed to meet that burden.

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Even if the MDA is a bad deal for Wife as it may well be, that alone does not justify relief under Rule 60.02.

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As did the trial court, we find that Wife had no reasonable basis for concluding that [Husband’s counsel] represented her.

Wife has testified that, on multiple occasions in this case, she simply did not timely or carefully read the documents that were presented to her. Respectfully, that was Wife’s responsibility, and her failure to act with diligence in response to Husband’s suit for divorce is not a basis for relief under Rule 60.02

The Court affirmed the trial court’s judgment.

Higdon v. Higdon (Tennessee Court of Appeals, Middle Section, October 29, 2020)